1836. RAJUNDER NARAIN RAE ย. BIJAI GOVIND SING. advise his Majesty to rescind an order made in ignorance of the facts, and which consequently contains statements directly at variance with the facts. The Lord Chancellor is accustomed to exert a similar authority when he orders a patent to be rescinded by scire facias. Mr. J. Stuart. It is no fatal objection to this application that the report made on the hearing of the cause has been confirmed by the King in Council. Admitting this to be a Court of last resort, there is no authority for maintaining such to be the practice. A decree made in default of one party does not stand in the same light as a decree made on the hearing of both parties. Such a decree is never treated as bis judicata. The statement on the face of the order is that it was made on the appearance of one party only: that makes the order in fact only a dismissal for want of prosecution. Where, as in this case, the default is by the party complaining, the business of the other side is not active. A respondent is never an actor, except to rid himself of the appeal. The affirmance of a decree is a solemn act, and can never be said to have been intended in the absence of the party complaining of the decree. The justice of the case is satisfied by the simple dismissal of the appeal; the respondent has no right, nor does he suffer any hardship. That is the course in the Court of Chancery; in Palmer v. Palmer, 5th November 1836, on appeal to the Lord Chancellor, the appellant not appearing at the hearing, the appeal was dismissed with costs; there was no affirmance of the judgment below. It is impossible to carry the case higher than one of dismissal for want of prosecution. As to the merits, they were never entered into; and 1836. NARAIN RAE v. BIJAI GOVIND there is no contradiction to the affidavit made in support of the present application. The cases cited show RAJUNDER that there may be cases of affirmance of a judgment below, where the infant has by his guardian appeared and been a party at the hearing, and which notwithstanding, the Court will review; but here there was neither hearing, in the proper sense of the word, or materials for hearing. Mr. Serjeant Spankie and Mr. Stinton, for the This is an application to change the practice of this Court. The rule has hitherto been, that where an appellant makes default at the hearing, the judgment below is affirmed; that has always been understood to be the course. If a contrary practice is now introduced, the inconvenience that must result is inconceivable: there is no case in which such an application as the present may not be made, and your Lordships will be occupied with applications for re-hearings in every cause that has been heard exparte. The order of 16th April 1834 only purports that the cause was heard in the usual manner and the usual order made. The petition for re-hearing is in misericordia, and your Lordships will weigh very maturely any advice you may deem it right to give for the alteration of a practice that has so long prevailed. With respect to the merits, as far as they appear upon this petition, the parties have not been damaged. The decree appealed against was pronounced in 1812. The regulation of the Sudder Court is, that an appeal must be prosecuted within six months after the decree is pronounced, unless by special leave of the King in Council (a); (a) Bengal Regul. 16 A. D. 1797. SING. 1836. NARAIN RAE v. BIJAI GOVIND SING. the father of the present appellant had the judgment RAJUNDER- standing against him for nine years. The Statute of Limitations runs against infants as well as adults; 12 years is the period within which a demand can be made here; of that period nine years had expired. They make no case to ask for a review, and the question is, whether your Lordships will let them in under this petition to open the whole proceedings in the Court below. Where there has been laches the Courts are not accustomed to grant such indulgence, even to an infant. Mr. Fraser, the agent on the other side, a most respectable practitioner, knowing the defalcation of Mr. Poe, ought to have applied to the Court of Wards; his application to the East India Company was vain and nugatory; they had nothing to do with it: he might have appeared at the hearing and stated the facts now insisted on; that might have induced the Court to stay the hearing of the appeal till further inquiry had been made; more than a year was allowed to elapse before any steps were taken to revive the appeal; we stand upon the fact that the appeal was dismissed. The consequence of admitting the application now made will be to unsettle the whole practice of this Court. 14 Dec. Sir Charles Wetherell, in reply. Lord BROUGHAM: This was a petition to re-hear the cause upon which their Lordships had given their judgment on the 16th April 1834, after an order of the 29th July 1833 calling on the appellants to deliver printed cases in a fortnight, otherwise their Lordships would proceed to hear the cause exparte; no cases were delivered, and NARAIN v. BIJAI GOVIND the cause came on accordingly. The appellant not 1836. appearing, an order was made in what is understood RAJUNDERto have been the usual form in the Privy Council in such cases; it was, that after hearing the counsel for the respondent, and no one appearing for the appellants, the decree appealed from be affirmed, and the appeal dismissed with costs. This order was confirmed, that is to say, the report of their Lordships was adopted, and made an Order of the King in Council. The ground of the present application is, that there has been no hearing, but that the affirmance was pronounced merely on the appeallnt making default. This it is contended entitles their Lordships to amend the order, and advise His Majesty to revoke the confirming order; and if the power to do so exists, the appellant then contends that it ought to be exerted in this instance, inasmuch as he makes out a strong case for the indulgence of the Court. The parties were infants under the Court of Wards in Calcutta, and appeared by a public functionary, through the appointment of that Court, as their guardian ad litem. This person neglected the case altogether, and not only did not provide funds for carrying it on, but absconded with funds in his hands which had been allowed for the expense of the suit, and he was not to be found when the agent here desired to communicate with him; nor has he since returned. Although some delay occurred in prosecuting the appeal during the life-time of the party, the father of the infants, who had commenced the appeal, it is clear that the infants had been substituted in his room, and steps had been taken which waived any objection on the ground of his laches; and whether this was waived by the respondent or by the Court is immaterial for the present purpose; the case SING. 1836. for indulgence is, therefore, a strong one, provided RAJUNDER- there is the power to grant this application. NARAIN RAE v. BIJAI GOVIND SING. It is unquestionably the strict rule, and ought to be distinctly understood as such, that no cause in this Court can be re-heard, and that an order once made, that is, a report submitted to His Majesty and adopted, by being made an Order in Council, is final, and cannot be altered. The same is the case of the judgments of the House of Lords, that is, of the Court of Parliament, or of the King in Parliament as it is sometimes expressed, the only other supreme tribunal in this country. Whatever, therefore, has been really determined in these Courts must stand, there being no power of rehearing for the purpose of changing the judgment pronounced; nevertheless, if by misprision in embodying the judgments, errors have been introduced, these Courts possess, by common law, the same power which the Courts of Record and Statute have of rectifying the mistakes which have crept in. The Courts of Equity may correct the decrees made while they are in minutes; when they are complete they can only vary them by re-hearing; and when they are signed and enrolled they can no longer be re-heard, but they must be altered, if at all, by appeal. The Courts of Law, after the term in which the judgments are given, can only alter them so as to correct misprisions, a power given by the Statutes of Amendment. The House of Lords exercises a similar power of rectifying mistakes made in drawing up its own judgments, and this Court must possess the same authority. The Lords have, however, gone a step further, and have corrected mistakes introduced through inadvertence in the details of judgments; or have supplied manifest defects in order to enable the decrees to be |